Choice of law applicable to joint cross-border public procurement by central purchasing bodies or under occasional collaboration agreements

An innovative way of procurement and a strategic tool of using purchasing power, joint, a.k.a. aggregated or collaborative cross-border public procurement (JCBPP) can be a promising mechanism of efficient purchasing. At the same time, JCBPP is not without its challenges (Recital 72 of Directive 2014/24/EU2), including legal complexity of collaboration projects together with the lack of coherent legal framework on the EU level.

Among the legal issues, choosing or identifying the national law that is going to govern different stages or parts of a collaborative procurement, is of obvious critical importance for the whole enterprise. The conflict-of-law topic has a wide dimension, containing the following unknowns:4 what law applies to a JCBPP procedure and to relationships between collaborating authorities; where is the competent review body for in proceedings initiated with regard to actions conducted in the course of JCBPP; what law applies to and which court or other review body has the power to decide over matters concerning jointly awarded public contracts? The presence of two or more contracting authorities of different domiciles in a JCBPP situation adds layers of complexity to possible conflicts of law issues, some of which have as of current no clearly foreseeable solution.

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